Canadian Federal and Provincial Laws Governing Decision-Making Responsibility

As of March 1, 2021, the term “Custody” has changed to “Decision-Making Responsibility” in Canada (both in Ontario and Federally). Decision-making responsibility can be either governed by the Divorce Act, RSC 1985, c 3, which is a federal statute, or the Children’s Law Reform Act, RSO 1990, c C12, which is a provincial statute. The Statute that applies to your case will depend on whether the children are of a marriage or a common-law relationship. In Ontario, a couple is deemed to have a common-law relationship if they have a conjugal relationship of some permanence; either the couple would live together for 3 years, or have a child together.

Custody, however, may also be given to a non-parent if they make a court application (which we can assist you with). A step-parent, grandparent or any other third party may seek an order for custody and access.

Decision-making responsibility refers to the right and responsibility of a parent to make major decisions for the parent’s child. Major decisions generally include those concerning education, religion, and non-emergency healthcare. If a parent moves out of the home without the child, the parent in whose care the child remains has “de facto” (meaning: practically) custody. However, this can certainly be reversed if a court application demonstrates valid reasons for the reversal.

The Legal Test For Decision-Making Responsibility

The Courts will ALWAYS favor the best interests of the children. Mostly, the courts will consider factors such as the following:

1. The children’s physical well-being
2. The children’s emotional well-being and security
3. The applicant’s education and maintenance plan for the children
4. The children’s financial needs
5. The children’s religious and ethical upbringing
6. The applicants’ understanding of the children’s needs
7. The children’s wishes depending on their age
8. The benefit of keeping siblings together
9. The bonding between the children and the children’s caregivers
10. The history of care of the child
11. The children’s views and preferences
12. Each spouse’s willingness to support the children’s relationship with the other spouse
13. Any family violence and its impact on, amongst other things, the ability and willingness of a person engaged in family violence to care for and meet the needs of the child and the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the children
14. Any civil or criminal proceedings, order, conditions, or measure that is relevant to the safety, security, and well being of the child.

Joint custody is unlikely where the parents have a bad relationship or an inability to work together because it will exacerbate conflict. That would not be in the child’s best interests and it may result in deadlock on major decisions.

Tests for family law orders and rights are HIGHLY fact-based, rather than legal based; meaning past legal cases are less likely to predict court orders, unlike other areas of law. The courts will look at your specific case facts and decide accordingly on a case-by-case basis.

It is important to negotiate a parenting plan as soon as possible with your lawyers. It may not only be incorporated into a separation agreement, that agreement could be enforced in court, and the parenting plan may also form the basis of a court order. When seeking an order from the court, it is important to ask from the judge what you are looking for. As lawyers, we describe specifically what our clients need from judges, which increases clarity in a court case and smooths the process of achieving your goals.

Some parents may prefer mediation when negotiating such plans. However, that is not always recommended especially not for couples where there is a significant power imbalance, domestic violence and where one influences the other.

If you are looking to seek sole decision-making responsibility or joint decision-making responsibility, make sure to contact us at contact@ranacharif.ca or 647 806 9184 and book a consultation to assess your chances.